Hammond v. Port Royal & Augusta Ry. Co.

• Decision Date: 21 March 1881
• Docket Number: CASE No. 1006.
• Parties: HAMMOND v. PORT ROYAL AND AUGUSTA RAILWAY COMPANY.
• Court: South Carolina Supreme Court

15 S.C. 10

HAMMOND

v.PORT ROYAL AND AUGUSTA RAILWAY COMPANY.

CASE No. 1006.

Supreme Court of South Carolina.

Mar. 21st, 1881.

1. Every cause of action in a complaint should be completely stated, and contain, within itself, all necessary averments, or it will be held bad on demurrer.

2. Where the facts are sufficiently presented as a cause of action, without regard to statements made in other counts, a demurrer will not be sustained, although the allegations are not as formal and distinct as they should be.

3. A demurrer to one of the causes of action set forth in the complaint being overruled, and defendant having at once given notice of appeal therefrom, and declined to answer, further proceedings under that cause of action should have been suspended until the appeal was disposed of.

4. A railroad having been sold by order of court to pay the debts of the corporation, the purchasers, the defendant corporation, are not responsible for injuries done by the railroad to adjoining lands before the sale, and, therefore, in action against the new company for damages done by the railroad to such lands caused by a failure to maintain proper drainage, the Circuit judge erred in charging the jury that “you will take into consideration all you have heard as to the value of the land then and now,” in estimating the damages.

5. But whether the damages should be measured by the rent of the land, the value of crops or the deterioration in value of the land, one or all, was a matter for the the jury to determine from the evidence.

6. The intention of the parties to a deed, as to whether an estate upon condition has been created, must be determined by the court from the words of the deed itself, and should not be submitted to a jury.

7. A deed conveyed a strip of land to a railroad company, to them, their successors and assigns forever, “provided always, and this deed is upon the express condition” that a certain system of drainage was to be kept up by the rail road company. Held, that this created a condition subsequent in deed, and voidable by the grantor upon condition broken.

8. But no action for the recovery of the land could be brought by the grantor until he had made entry upon the land after condition broken, or made claim, if entry was impossible.

9. Whether the grantor had waived his right to enforce a forfeiture, is a question of intention depending upon the facts, and was properly submitted to the jury.

10. Public policy does not forbid a railroad corporation from accepting land for its road-bed upon such conditions-conditions reasonable and possible to be performed.

Before ALDRICH, J., Aiken, April, 1880.

This was an action instituted June 26th, 1879, by Paul F. Hammond against the Port Royal and Augusta Railway Company, upon two causes of action, which are sufficiently stated in the opinion of this court.

On May 22d, 1872, Hammond executed and delivered to the Port Royal Railroad Company a deed of bargain and sale, whereby he conveyed to the railroad company a strip of land through his Cathwood plantation, in South Carolina, upon the conditions set forth in the opinion of this court. Hammond had, before that time, at great expense, reclaimed this land and the lands adjoining, so that they had become very highly productive and valuable. Hammond, believing that the corporation had failed to perform these conditions, filed a bill for specific performance in the Superior Court of Richmond county, in the State of Georgia, through which county this railroad passed. The jury to whom the cause was submitted, May 4th, 1875, found a verdict for $3000 damages, and that the railroad company be required to comply with their agreement, as set forth in the deed, within ninety days, under a penalty of $5000. This verdict was set aside by the Supreme Court of Georgia, on appeal, upon the ground that the court had no jurisdiction to compel a Georgia corporation to go into an adjoining state to perform a contract. 58 Ga. 583.

December 15th, 1874, a bill was filed in the United States Circuit Court for the District of South Carolina, by mortgage creditors of the Port Royal Railroad Company for a foreclosure of their mortgage. On March 28th, 1878, Hammond filed his petition in this cause, setting forth the deed, the failure of the corporation to comply with its conditions, and his damages, and praying to be made a party defendant, and that he be heard upon all questions relating to the sale and the application of the proceeds, and for his damages and a removal of the obstructions. On May 9th, 1878, this petition was referred to James Simons, Esq., as special master, for investigation and report. On April 25th, 1879, Mr. Simons filed his report, wherein he ascertained the damages at $8940, but that such damages were not an encumbrance superior in law to the mortgage.

Meantime, on June 6th, 1878, the railroad was sold by order of the United States Court and purchased by a new company, who organized under the name of the Port Royal and Augusta Railway Company, and took possession in May, 1879. The sale was confirmed during this same month, “without prejudice to the claim of Paul F. Hammond,” who obtained leave the same day to withdraw his petition upon payment of costs.

On June 12th, 1879, Hammond, by his attorney, demanded, by letter, from the defendants, the possession of the land described in the deed-but possession was not surrendered.

Action was then brought as above stated. Defendants answering the first cause of action denied title in the plaintiff, and demurred to the second cause of action. The demurrer was overruled, and defendants excepted and gave notice of appeal, and asked for a continuance pending the appeal. Leave was granted to put in an answer, which was declined. The case was required to go on. After the evidence for plaintiff closed, defendants moved for a nonsuit, which was refused.

The defendants asked for several instructions to the jury, which are repeated in their grounds of appeal. The charge of the presiding judge was as follows:

The requests to charge have been read, and you will be able to arrive at your conclusions after I have delivered to you my charge. I will note on them for the purposes of this case those that I refuse and those that I charge, so that the whole matter can be discussed in the Supreme Court. As this is a very important case, I desire that every word may be clearly understood.

Next to life and liberty, the law guards with jealous care the freehold of the citizen. The questions of law in this case have been very fully and ably discussed by counsel. They are very interesting and important. These I have decided. If I am wrong I will be corrected by the Supreme Court; if I am right, much time and labor will be saved to the parties to this cause, and much expense to the county. With these questions of law you have nothing to do; you will understand them from what I am about to say; for them the court alone is responsible. The evidence has been given you from the stand.

There are three questions of fact to decide, which is your peculiar province, and I do not propose to influence your minds, as the law has allotted to you that exclusive duty.

The first is, did the plaintiff, Hammond, sign and execute this paper, intending to convey to the Port Royal and Augusta Railroad Company, the defendant, an estate on condition that his system of drainage was to be preserved as it then was, or was it a covenant, which, if violated, gave him an action for damages against the company, to be assessed by the jury.

If you find it was an estate on condition, and that the condition has been broken, then the verdict will be for the land conveyed in the deed-on the breaking of the condition the title reverted-and such damages as you may find the plaintiff has sustained by the non-performance of the condition. Now this question of condition is one of evidence. Did the plaintiff, Hammond, convey the strip of land to the railroad company on condition? The charter of the company empowered the corporation to enter upon the freehold of the plaintiff, appropriate his land against his consent, at such a valuation as a jury of freeholders might assess. This was giving the corporation the right of eminent domain, which none but the sovereign state can exercise. The surrender of this sovereign right is a concession to those great corporations which add so much to the wealth, convenience and happiness of the people. They convey the mail and passengers with the speed of the wind-annihilate time and space and develop the resources of the country, convey its produce with celerity at reduced rates, enhancing the value of lands through which they pass or which are adjacent, build up towns, villages, and sometimes cities on their lines, increasing the wealth of the state, and adding to the convenience and comfort of the people-a benefit hardly to be appreciated.

For these reasons the state has permitted these corporations to share her right of eminent domain. But, while the state has been thus generous to the projectors of these enteprises which add to her wealth, and to the convenience and comfort of her people, she has not been unmindful of the rights of the proprietors, her own citizens and children. So when she granted this charter empowering the company to enter upon and appropriate the right of way, she also imposed upon them the duty of getting the consent of the proprietor, or, if he refused, to have the damages assessed. In this particular case the company elected to negotiate with the proprietor, and the deed before you is the result. From this deed and the evidence you have heard, the question for you is, what was intended by it? Was it a conveyance of the strip of land on which the railroad is erected, a title to the land on condition that the system of drainage should remain as it then was, or the land revert, or was it not? What did the plaintiff intend when he executed the title, and what...